Much was made in the intervention of the fact that the Supreme Court had declared the MOA unconstitutional. Two things must be considered: is the performance of an act that is later declared unconstitutional tantamount to a culpable violation of the constitution? doesn’t the 8-7 decision reflect the reality that the declaration of unconstitutionality is not definitive? And hasn’t the appropriateness of the tenor of the decision been the subject of some debate?

What is Constitutional or not is essentially a matter of interpretation. Which is why the SC is called the final arbiter of Constitutionality. It has the last say and it’s interpretation is what ultimately matters. In fact, until the SC says something is unconstitutional, that something is presumed to be constitutional.

This being the case, I would imagine that a culpable violation of the constitution would be an act (or something) that flies in the face of an established fact (read:something that the SC itself has already declared unconstitutional) of unconstitutionality.

If this seems like too-difficult a standard, well it is. And it is because impeaching a president should not be something that is easy to do. If it were easy to sack a president, then we would have a different president every other year, and most of them not even elected by the people.

The way politics work here is that everyone who isn’t in the fold is against the shepherd, allies all. When the shepherd is kicked out, not all of the erstwhile allies will be able to remain in the fold obviously, so those who are left out become allies with the previous shepherd’s clique and they form the new opposition whose raison d’etre is to oust the new shepherd. And so it goes, round and round. And if it were easy to kick out a shepherd, there would be exactly zero stability in the pasture.

Anyway, an 8-7 decision only means that the constitutionality issue was decided by exactly one person. Without that one person, an equal number of those high-and-mighties pretty much disagreed.

Joaquin Bernas (a constitutionalist beloved by the anti-GMA crowd when he speaks in their favor, but recently rather disgraced because they disagree with him) wrote

But back to the Court’s decision. Does the decision say that peace negotiators may not be authorized to propose amendments to the Constitution? Or, since peace negotiators are the President’s men, does the President’s oath, cited by the Court, to “preserve and defend” the Constitution prevent her from working for changes in the Constitution if needed to achieve peace?

The decision does not say that. After all, the President’s oath binds her not just to “preserve and defend” the Constitution but also to “do justice to every man.” Doing justice to every man may require her to work “out of the box.” Jurisprudence recognizes that the powers of the President are more than just those which are specifically enumerated in the Constitution.

But in these highly charged times, who really cares what the powers of the President are? Its a case of gotcha! advocacies nowadays. Which is exactly what the complaint-in-intervention was. One big GOTCHA! moment. And I might add that it is also a set of new clothes for the emperor.